Monday, June 07, 2010

Tenth Circuit published cases

Bunton v. Atherton, ___ F.3d ___ , 2010 WL 2041266 (10th Cir. 2010). In this Colorado state first degree murder conviction and life sentence, the Tenth Circuit found that the record developed in the state post-conviction hearing on claim of ineffective assistance of trial counsel, upon which the Colorado appellate court based its affirmation of the denial of state post-conviction relief, was unassailable under AEDPA § 2254 standards. However,one is left with the sense that the evidence upon which the conviction rested was terribly faulty. The only eye-witness to the shooting had a motive to lie because he may have been sweet on the defendant’s girlfriend, plus that witness testified to being in a place where it would have been impossible to see the shooting (and was a two time felon who had been smoking pot on the night of the shooting). The second witness who saw D on the sidewalk (but did not see the shooting) had taken tranquilizers that night and was known to be a heavy drinker. State post-conviction determination that trial counsel’s decision not to call D’s girlfriend was not unreasonable, since the dead guy was also sweet on her and may have supplied D’s motive to shoot him, was not unreasonable. State post-conviction determination that D procedurally defaulted the issue of whether counsel was ineffective in not developing evidence that the witness could not see the shooting, because D did not put a trial exhibit (on which witness pinpointed where he was as the time of the shooting) into evidence at the post-conviction hearing (in spite of argument on federal review that the exhibit was not necessary to review), was an independent and adequate state procedural ground, even though its application was discretionary.

Hooks v. Workman, ___ F.3d ___ , 2010 WL 2041282 (10th Cir. 2010) . The Tenth upholds guilt phase convictions on five counts of murder (5 dead women in a crack house, defendant’s DNA present in blood, semen found at scene; match made 5 years after murders), but the majority reverses the five death sentences on grounds that the Allen instruction given during penalty phase deliberations was coercive, and an unreasonable application of Supreme Court precedent in Lowenfield v. Phelps, 484 U.S. 231 (1988).

The Tenth rejects D’s guilt phase claims of ineffective assistance of counsel ( D testified to having been at the location partying with the women and having sex with two, having left and returned after cutting himself, having seen they were dead, having touched things, having left again).

On the penalty phase issue, the majority (J. Murphy) first observes that in DP cases in OK, lack of unanimity on the issue of death does not result in a mistrial, so the need to resolve the issue is less than in the guilt phase. Lowenfield stands for the proposition that a D is entitled to an uncoerced jury verdict in the guilt phase of a DP case. Whether a particular Allen charge crosses the line into coercion depends on an assessment of all the circumstances of the case. The COA boldly describes the prosecutors’ penalty closing as intentionally misleading on the need for jury unanimity on the sentence. After 5 hours of deliberation, the jury sent out a note that it was 11 to 1 for death and wanted to get rid of the one holdout juror, indicating that it believed unanimity was required. D requested an OK instruction that recognized that if after further deliberations the jury could not decide, that it was discharged, and the judge would enter a sentence of life. The prosecutors objected, so the judge told the jury it could not grant its request (to get rid of the juror). After 10 minutes the jury said it was deadlocked. D moved unsuccessfully for a mistrial. The court gave a heavy duty Allen charge for sentence phase deliberations. The jurors continued deliberating into the early evening (7:30), and took a dinner break. The court continued to refuse D’s request that the jurors be asked if further deliberations would be helpful. After returning from dinner and being told that the court would need to know by 10:30 p.m. if they needed a room for the night, 40 minutes later, they came back with death. In spite of agreeing with D on many key areas of error, the OK court of appeals upheld the sentence.
O’Brien dissented. “I am not sure [the OK CA] was correct in that assessment [that the jury was not coerced] but I join the district court in concluding its decision was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court.”